Toward a History of Clean and Endless War

It is idle — but interesting — to speculate on what future historians will say about our own time. True: We can never know, and would probably find ourselves shocked by what future generations conclude really mattered, even as the things we care passionately about prove trivial in hindsight. But guessing about the verdict of history can prompt useful deliberation about our choices now, and how long our justifications of them might stand.

This season’s Dissent features a debate between Just Security editor David Cole and myself regarding civil libertarianism and human rights advocacy in our era of endless war. When we imagine our future chroniclers, we might easily indulge the belief that our main accomplishment is, well, just security — especially given the successful campaign to correct the excesses of the first stages of the war on terror. In my piece, I worry that our legacy is likelier to be seen as endless war, and whether cleaning it up by bringing its conduct within moral (and legal) constraints helped cement the outcome.

Of course, it would be deeply unfair to suggest that progressive national security lawyers have focused exclusively on the legal hygiene of our endless war, especially under the present administration. In particular, commentators on this site and elsewhere have at times made the legality of current engagements under statute a concern (when there seemed a chance to replace rather than reinterpret Congress’s military authorizations). Yet I would suggest that, even when egged on by more critical observers to their left and right, the same voices have hardly risen in a chorus to decry Obama’s occasional reliance on Article II, let alone indicted ongoing forays beyond the red lines on the use of force that international law tries to draw. Take for example, the minimal pushback (even on statutory grounds) on the 2011 Libyan campaign that was conducted under the auspices of a humanitarian UN Security Counsel resolution, or the quick ascent of the idea that cross-border force is justified under customary international law when a sovereign is “unwilling or unable” to prevent violence, or the negligible public and legal debate within in the United States since the start of its escalating campaign against the Islamic State — even as the bombing of a hospital understandably draws attention.

A worry about an imbalance in our attention to the conduct of the war on terror, rather than the initiation and continuation of the war itself, is no doubt open to debate, and David justifiably pushes back in Dissent. But I thought it would be interesting to place the hygiene of war in deeper context — to briefly try to figure out some of the trajectories that might have created our result, and might therefore become the plot for our future historians.

In my original piece I emphasize the short term: a strategic choice to focus moral opprobrium and legal work on the conduct of the war on terror in the face of its sheer popularity, and later a more complex strategic calculation about how to respond when liberals inherited the forever war from conservatives. But for all its short-term specificity — and big strategic choices that progressives have made and continue to make on what concerns to emphasize — the bet on humanizing war rather than ending it is very old. And American progressives have doubled down on it in the medium term of the past few decades, potentially making it much harder to escape than if it were just a momentary response to particular post-9/11 conditions.

Originally, the hygiene of war (i.e., the legal structures and rules for how war will be conducted) was actually viewed as an indirect strategy for its abolition. Humanizing war would end it, not help make it endless. As far back as 1890, the first leader of the International Committee of the Red Cross defended his group’s activities on the grounds that “men have concluded that they ought to begin by showing some regard for another’s suffering, up to a certain point, … pending the time when a still stronger conviction of their common humanity shall lead them to understand that the very idea of their killing one another is monstrous.” The strategy of cleaning war up, he hoped, “could end only in its abolition.”

If that was the bet, it hasn’t paid off so far. Even at the time, there were skeptics, like the famous pacifist Leo Tolstoy who begged his contemporaries not to sanitize war on the grounds that it would make it more enduring. (“If there was none of this magnanimity in war, we should go to war only when it was worth while going to certain death,” Tolstoy has Prince Andrew say in War and Peace.)

To the extent there ever was a causal relation between humanization and abolition, it does not seem lasting, let alone necessary. Indeed, it is at least theoretically possible, as Tolstoy understood, that humanizing war could make recourse to it more tolerable. But neither do the aims diverge necessarily. To be clear — since I wasn’t clear enough for David Cole to judge by his response — I personally do not follow Tolstoy in thinking there is some necessary choice between humanizing and ending war, either in general or in our time. Yet we ought to ask whether in any particular episode or era making war more humane does in fact make its legitimation easier for various actors and audiences. Just as importantly, the future historian will judge us not only according to our intentions, but by the outcomes we participated in creating. That our approach to war may have made it simultaneously more hygienic and more interminable thus may not be a coincidence.

In the medium term, our syndrome — if it is one — reflects a specifically American history through and since the Vietnam conflict. For most of the 20th Century, war abolition had been the most intense commitment of international lawyers, certainly including Americans. At Nuremberg, Americans were in the lead in stigmatizing aggressive war first of all, with atrocity in distinctly second place. As Herbert Wechsler plausibly asked in a classic article on the tribunal’s focus, “Once the evil of war has been precipitated, nothing remains but the fragile effort … to limit the cruelty by which it is conducted. … Of these two challenges, who will deny that the larger offense is the unjustified initiation of a war?” For a long time, the answer was: no one. But no one today could say that control of force, especially under international law but also under statutory and constitutional powers, has taken pride of place in the age of the war on terror.

I think the central reason is likely to be found in the aftermath of the Vietnam conflict. Initially, after the fracturing of Cold War consensus led Americans to doubt the cause, both domestic and international agitation turned on the propriety of the engagement, from a moral, political, and legal point of view. Through the early 1970s, human rights did not yet really figure as a vocabulary of opposition to state practices. Indeed, the Geneva Conventions — far older than the law of human rights and negotiated and embraced by the American government — were barely mentioned in an age in which violations were humongous and horrendous relative to post-9/11 history. Perhaps it was because no John Yoo brazenly denied their applicability, but perhaps it was because an antiwar movement that had more salience than in any moment in American history since had bigger fish to fry. (I cover all this in a different recent study.)

But as James Mann has incisively recorded, bad memories of George McGovern’s massive losses under an antiwar banner still haunt the Democratic party — and those lawyers who think with one eye on its national security policies and their electoral viability. For that matter, the military itself came to so internalize the importance of the law of armed conflict that by the time the war on terror dawned, no descent into the brutalities of the earlier era was even imaginable, and it certainly did not occur. In a still shadowy era between the end of the Vietnam War and the 1990s, a page was turned, and it included unprecedented consensus around more humanely fought wars and even federal statutes covering war crimes and torture.

If this is right, the bet on hygiene as the best moral strategy has vastly increased in the past couple of generations. With the Vietnam War’s initial legacy of the War Powers Resolution reduced to a dead letter almost immediately, American progressives have gone full-bore on the development of human rights and the “humanization” of the law of war. Yet all along the way, less emphasis was given to the international law on the use of force — when its “legitimate” violation has not been celebrated as an advance for humanism in Kosovo and since. Domestic constraints also remain startlingly weak, with no one proposing, as John Ely famously did after Vietnam, to strengthen them. The die may have been cast for post-9/11 progressive priorities.

In the end, neither I nor anyone else knows how our time will fare in the eyes of posterity. There are various ways to justify, and various ways to criticize, all these developments, and I regard David Cole’s exchange and mine as one entry into what ought to be a more and more significant debate the more interminable our age of clean but endless war becomes. After all, there is always the chance to adjust our emphases and strategies to avoid finding ourselves in in the wrong story. We do not want to be protagonists in a rather tragic drama of humanizing war — but contributing to its endlessness — that someone may someday stage about our labors.